Jennifer M. Chacon on Border Searches of Electronic Data

Jennifer M. Chacon on Border Searches of Electronic Data


Recent court cases and news articles have dwelt on people arriving in the United States who had a laptop, disk, or other computer gear seized and searched by customs officials. Jennifer M. Chacon, who teaches criminal and immigration law at the University of California-Davis law school, explains why the government can do this, the constitutional standard that applies, and what the ramifications are and can yet be. She writes:
 
     One context in which the courts routinely have given government officials greater leeway to conduct searches is at the nation’s borders. Courts have reasoned that searching the baggage of arriving passengers is “based on [the country's] inherent sovereign authority to protect its territorial integrity.” Thus, although arriving passengers still have an expectation of privacy in their belongings, the government’s strong interest in protecting its borders generally outweighs the individual’s expectation of privacy at the border. The same rationale that applies at traditional ports of entry also applies to international travelers at airport checkpoints, because such checkpoints are the “functional equivalent of the border.” The strong governmental interest in protecting the nation’s territorial interest trumps an individual's privacy interests in most border searches. The Supreme Court thus has upheld routine, suspicionless searches of the luggage of arriving passengers “no matter how great the traveler’s desire to conceal the contents may be.”
 
     . . . .
 
     Read in combination . . . [United States v. Ickes, 2005 U.S. App. LEXIS 53 (4th Cir. 2005) and United States v. Arnold, 2008 U.S. App. LEXIS 8590 (9th Cir. 2008)] suggest that the government’s decision to search the information on a laptop or any other electronic storage device at the border or its functional equivalent is permissible with respect to any traveler, for any legal reason or no reason at all. The Ickes court concluded that searches of electronic data (in that case, videotapes) require no individualized suspicion, regardless of the potentially expressive nature of the materials. The Arnold court embraced that reasoning, and expanded upon it. It concluded that government officials at international checkpoints can require an individual to turn on his or her laptop and can review any and all of the files therein without any individualized suspicion.
 
     . . . .
 
     For the international traveler, the decision by several courts to uphold searches by government agents of laptop and other electronic files at the border with no individualized suspicion whatsoever has serious implications. The Arnold case and the Ickes case each reaffirm a practice that is already widespread: one in which customs and immigration officials routinely search, download, and save electronic files at the border and its functional equivalent. As the Association of Corporate Travel Executives and the Electronic Frontier Foundation noted in their amici brief to the Ninth Circuit in the Arnold case, that case and other recent cases have involved instances where “[c]ustoms officials in fact conduct sophisticated searches of seized computers, looking at documents, deleted files, and Internet caches.” International travelers need to be aware that customs and immigration agents currently are exercising their apparent authority to search, copy, and store the contents of travelers’ laptops even if there is no reason for the government to suspect that the individual carrying that laptop is in any way involved in criminal activity.
 
(footnotes omitted)
 
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